Citation NR: 9705012
Decision Date: 02/14/97 Archive Date: 02/19/97
DOCKET NO. 94-29 130 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of service connection for rheumatic heart
disease.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joshua Blume, Associate Counsel
INTRODUCTION
For the purpose of administering Department of Veterans
Affairs (VA) benefits, the veteran had active service from
June 1944 to August 1945. The veteran served in the U.S.
Maritime Service from December 1942 to February 1944, when he
was disenrolled by reason of having contracted rheumatic
fever. Although the veteran essentially contended during his
personal hearing that his tour of duty in the Maritime
Service should be considered the functional equivalent of
active duty for training, this has not been corroborated by
service documentation. The veteran also indicated during his
personal hearing that he commenced serving with the U.S.
Merchant Marine on or about April 1944 and continued to serve
therein until sometime in 1946. A certificate in the
veteran’s claims folder notes that the veteran had
“substantially continuous service” from December 1942 through
February 1946.
A letter in the veteran’s claims folder dated September 1988
advised the veteran that he was then eligible to claim
veteran’s status for the purpose of receiving VA benefits.
The letter advised that his DD-214 and his DD-256 CG would
delineate the period of his “active duty” for VA purposes.
The veteran’s DD-214 indicates the veteran’s active service
as June 1944 through August 1945 and an accompanying DD-215
notes that the DD-214 administratively establishes the dates
of the veteran’s active service for VA purposes. Hence, the
Board of Veterans’ Appeals (Board) takes the dates on the
veteran’s DD-214 as the dates of the veteran’s active
service.
By a decision of October 1988, the Columbia, South Carolina
Regional Office (RO) denied the veteran’s original claim of
service connection for a heart condition due to rheumatic
fever since the veteran contended that he contracted
rheumatic fever on or about January or February 1944 - a span
of time preceding the veteran’s administratively determined
active duty dates, and such disease was not shown to have
been aggravated therein. The veteran was informed of the
denial of his service connection claim and provided his
appellate rights, but did not appeal within one year. Hence,
the October 1988 rating decision became final.
This appeal to the Board arises from a March 1993 rating
decision of the RO which denied the veteran’s claim of
service connection for rheumatic heart disease on the ground
that no new and material evidence had been submitted, and
denied the veteran’s original claim of service connection for
a lung disorder. The Board notes that the veteran did not
appeal from the March 1993 rating decision on the issue of
lung disorder. Hence, that issue is not in appellate status
and will not be addressed herein.
The Board notes as well that the veteran raised complaints of
back and leg trouble and arthritis in the hands and fingers,
all allegedly connected to his bout of rheumatic fever in the
service, in his Notice of Disagreement of August 1993 and
during his personal hearing. Since the RO did not adjudicate
these claims, the Board does not have jurisdiction, and
refers these issues to the RO for appropriate action.
The Board notes the veteran’s contention that he was
insufficiently informed by the RO of the evidence necessary
for him to submit in order to reopen his claim of service
connection. Specifically, he claims that the RO’s rating
decisions, letters mailed to the veteran apprising him of the
reasons for the RO’s denial of his claim, and its Statement
of the Case of August 1993 do not specify the type(s) of
evidence the veteran must submit in order to reopen his
claim.
Examination of the relevant documents confirms the RO’s
imprecision in stating the issues to be adjudicated. The
Board is of the opinion, however, that the RO satisfied its
duty to advise the veteran of the requirement of new and
material evidence in the May 1994 Supplemental Statement of
the Case. Furthermore, the RO referred to the requirement of
new and material evidence in the Reasons for Decision section
of its August 1993 Statement of the Case. The veteran having
had adequate notice of the type of evidence required then,
the Board proceeds to adjudicate the claim. Graves v. Brown,
8 Vet.App. 522 (1996).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he currently suffers from rheumatic
heart disease which was first manifest in service. He
contends that he came down with rheumatic fever while
installing torpedo nets on Merchant ships during several
nights of freezing rain. He contends that he was
hospitalized for this condition, and subsequently
“disenrolled” for it in February 1944. He contends that the
rheumatic fever later became heart disease after his
separation from service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been presented for the purpose of reopening the claim of
service connection for rheumatic heart disease.
FINDINGS OF FACT
1. The October 1988 denial of service connection for
rheumatic heart disease became final in the absence of a
timely appeal.
2. Material evidence which would raise a reasonable
possibility of changing the outcome has not been associated
with the claims folder since the last final decision.
CONCLUSION OF LAW
The evidence submitted since the final October 1988 denial of
service connection for rheumatic heart disease is not new and
material; thus, the claim of service connection cannot be
reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104 (West 1991 &
Supp. 1996); 38 C.F.R. § 3.156(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Historical
The RO, at the time of its October 1988 decision, considered
evidence which included the veteran’s service medical
records, his certificates of discharge from service, his DD-
214, DD-215 and his DD 256-CG forms. The medical records in
the claims folder reveal that the veteran was found to have a
faint apical systolic heart murmur on exercise by an
examination of December 1942. The discharge records taken as
a whole reveal that the veteran’s administratively determined
active service did not begin until June 1944. A
“disenrollment” certificate showed the veteran discharged
from maritime service for a disability in February 1944. A
letter dated March 1977 in the file stated that the veteran’s
disenrollment disability was rheumatic fever. The RO based
its October 1988 decision on the fact that the veteran’s
administratively determined active service fell after the
veteran was disenrolled for rheumatic fever, and that the
veteran had presented no evidence of aggravation within his
active service period.
Evidence submitted since the October 1988 decision include
private medical records from the veteran’s private physician,
William E. Gause, Jr., M.D.,; a lay statement from [redacted], dated February 1994, and a medical journal
article on the relationship between rheumatic fever and
mitral valve heart disease. The veteran also resubmitted his
various discharge and disenrollment certificates. The
veteran was afforded a personal hearing before the RO in
February 1994.
Dr. Gause treated the veteran for many acute and chronic
conditions, including chronic pulmonary obstruction, enlarged
prostate, rectal bleeding and hypertension. There are
numerous electrocardiograms in the record, and there is some
evidence of a mitral valve dysfunction.
In his lay statement, Mr. [redacted] stated his opinion that the
veteran was an honest, loyal and patriotic person.
During his personal hearing, the veteran stated that maritime
service was very much like boot camp in the Navy. While
there, the inductee learned a trade for between two and three
months and then was assigned to a ship. The veteran related
that while he was waiting to be assigned to a ship, he was
assigned to a torpedo net depot where his exposure to the
cold and to rain precipitated his contraction of rheumatic
fever. The veteran stated that he had had no rheumatic fever
or heart disease prior to this time. The veteran also
complained of inflamed fingers, swollen knuckles and sporadic
heart flutter as secondary effects of his rheumatic fever.
He stated that he was in the Naval Reserve from 1942 to
August 1944. He stated that after his disenrollment, he
served on a hospital ship from April 1944, and continued to
serve on various ships until 1946. He stated that during
this period of time, he never sought treatment for his
various conditions because as the ship’s pharmacist he was
able to self-medicate with Anacin, aspirin and soda pills.
He reported that he received no medical treatment between his
hospitalization and disenrollment in February 1944 and the
beginning of his service with a hospital ship in April 1944
either.
II. New & Material Evidence
The United States Court of Veterans Appeals (Court) has held
that once a denial of a claim of service connection has
become final, it cannot subsequently be reopened unless new
and material evidence has been presented. The Board must
perform a two-step analysis when the veteran seeks to reopen
a claim based on new evidence. First, the Board must
determine whether the evidence is “new and material”.
Second, if the Board determines that the claimant has
produced new and material evidence, the claim is reopened and
the Board must evaluate the merits of the veteran’s claim in
light of all the evidence, both old and new. Manio v.
Derwinski, 1 Vet.App. 144 (1991).
New evidence is that which is not merely cumulative of other
evidence of record. Material evidence is that which is
relevant and probative of the issue at hand and which
(assuming its credibility) must be of sufficient weight or
significance that there is a reasonable possibility that the
new evidence when viewed in the context of all the evidence,
both old and new, would change the outcome. Sklar v. Brown,
5 Vet.App. 140 (1993); Cox v. Brown, 5 Vet.App. 95 (1993);
Justus v. Principi, 3 Vet.App. 510 (1992). The Court has
also held that the Board is required to review all of the
evidence submitted by a claimant since the last final denial
of a claim on any basis, to include decisions by the RO or
the Board who had refused, because of a lack of new and
material evidence, to reopen a previously and finally
disallowed claim, after having considered newly presented
evidence. Evans v. Brown, 9 Vet.App. 273, 285 (1996).
Using these guidelines, the Board has reviewed the additional
evidence which has been associated with the claims folder
since the October 1988 decision. The records which have been
submitted, including the treatment records of Dr. Gause, the
lay statement of Mr. [redacted] and the veteran’s testimony and
statements concerning the origin of his condition, as well as
the medical journal article, are all new since they are not
merely cumulative of other evidence in the record. However,
in the Board’s opinion, this evidence is not material. Newly
presented or secured evidence must tend to prove the merits
of a claim as to each essential element that was a specified
basis for the last final disallowance of the claim. In
determining whether evidence is thus probative (that is,
whether it supplies evidence the absence of which was a
specified basis for the last disallowance), the specified
basis or bases, as discernible from the last decision, for
disallowance must be considered. Evans, 9 Vet.App. at 284.
The specified basis for the denial in the October 1988
decision was that the veteran had not demonstrated incurrence
or aggravation of rheumatic heart disease in active service,
and that the evidence indicated that the veteran acquired
rheumatic fever prior to active service. There is nothing in
the additional evidence submitted which would create a
reasonable possibility of changing this result, that is, that
rheumatic fever neither started in service nor became worse
in service. The veteran has still not presented evidence
which tends to nullify the administrative determination of
the veteran’s active service dates; further, no medical
evidence has been submitted which purports to link the
veteran’s current heart disorder to the veteran’s active
service. Accordingly, the Board concludes that new and
material evidence has not been submitted for the purpose of
reopening the claim of service connection for rheumatic heart
disease.
ORDER
As new and material evidence to reopen the claim for service
connection for rheumatic heart disease has not been
submitted, the appeal is denied.
N. R. ROBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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